Com. v. Cabrera, S.

• Court: Superior Court of Pennsylvania
• Decided: May 14, 2021
• Docket: 2397 EDA 2019
• Status: Unpublished

Opinion

J-S40005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMUEL N. CABRERA : : Appellant : No. 2397 EDA 2019

Appeal from the PCRA Order Entered March 4, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009793-2013

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

JUDGMENT ORDER BY SHOGAN, J.: FILED: MAY 14, 2021

Appellant, Samuel N. Cabrera, appeals pro se from the March 4, 2019

order dismissing his first petition filed pursuant to the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. After review, we vacate the March

8, 2021 order permitting counsel to withdraw and remand for the appointment

of new counsel.

We previously set forth the facts and procedural history of this case, and

do not repeat it here. See Commonwealth v. Cabrera, 242 A.3d 450, 2397

EDA 2019 (Pa. Super. filed November 25, 2020) (non-precedential

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* Retired Senior Judge assigned to the Superior Court. J-S40005-20

memorandum). We determined therein that Appellant’s appeal was timely,

but we remanded with specific instructions to the PCRA court.1

At a March 1, 2019 PCRA hearing, the PCRA court stated that it received

a Turner/Finley2 letter and sent Appellant notice of its intent to dismiss his

PCRA petition pursuant to Pa.R.Crim.P. 907. N.T., 3/1/19, at 3. Appellant’s

counsel then stated on the record that he would notify Appellant and file a

motion to withdraw.3 Id. However, the certified record did not contain a

Turner/Finley letter, a motion to withdraw, or an order granting counsel’s

motion to withdraw.

Accordingly, we directed the PCRA court to ascertain the status of PCRA

counsel and file its findings with this Court. We instructed, in pertinent part:

“If the PCRA court permitted counsel to withdraw, the record shall document

1 This matter was reassigned to the Honorable Scott DiClaudio because the original PCRA court jurist no longer is sitting on the bench.

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc) (setting forth the requirements for counsel to withdraw from representation on collateral review).

3 We observe that in counsel’s purported Turner/Finley letter, he stated that he telephoned Appellant and told him that he had a right to continue pro se or by private counsel if the “Court” granted withdrawal. In addition to the fact that a description of a telephone call to Appellant does not meet the mandate of Turner and Finley, counsel’s statement is open to an interpretation that Appellant cannot proceed until this Court rules on the withdrawal request. See Commonwealth v. Muzzy, 141 A.3d 509, 512 (Pa. Super. 2016) (clarifying that counsel’s letter to the client shall inform him that upon counsel’s filing of petition to withdraw, he has the immediate right to proceed pro se or through privately retained counsel).

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counsel’s petition to withdraw, letter to Appellant, and order granting

counsel’s motion to withdraw, and then we shall proceed to address

Appellant’s issues on appeal.” Cabrera, 2397 EDA 2019 (non-precedential

memorandum at *3).

Upon remand, by order dated March 8, 2021, the PCRA court permitted

counsel to withdraw. However, the supplemental record certified to this Court

following remand does not indicate counsel’s compliance with the protocols of

Turner and Finley. Additionally, the supplemental record still does not

include the required petition to withdraw as counsel and a copy of counsel’s

letter to Appellant. Upon our direction, our Prothonotary contacted PCRA

counsel, who indicated there was no letter to Appellant and no petition to

withdraw.

As we have previously stated, “The error here . . . is the denial of the

assistance of counsel, not the sufficiency of . . . whether Appellant’s claims in

his PCRA petition are meritorious.” Commonwealth v. Kelsey, 206 A.3d

1135, 1140 (Pa. Super. 2019). We have taken the time once already to permit

supplementation of the record in accordance with the requirements of Turner

and Finley. We will not continue to do so when it is clear that counsel has

not, and will not comply.

Because Appellant did not waive his right to representation by counsel,

and PCRA counsel has not complied with the minimum requirements of Turner

and Finley, the PCRA court’s dismissal of Appellant’s PCRA petition must be

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vacated, and remand to the PCRA court for appointment of new PCRA counsel

is required. See Commonwealth v. Cherry, 155 A.3d 1080, 1083 (Pa.

Super. 2017) (“When appointed, counsel’s duty is to either (1) amend the

petitioner’s pro se Petition and present the petitioner’s claims in acceptable

legal terms, or (2) certify that the claims lack merit by complying with the

mandates of Turner/Finley.”) (emphasis added) (footnote omitted).

On remand, following the PCRA court’s appointment of new counsel,

Appellant’s new counsel shall be permitted to file an amended PCRA petition,

or if counsel concludes in the exercise of his professional judgment that the

issues raised in the PCRA petition are without merit, counsel may file an

adequate no-merit letter that addresses all of the issues raised in Appellant’s

PCRA petition and must comply with the procedural requirements of Turner

and Finley to withdraw. Kelsey, 206 A.3d at 1140; Cherry, 155 A.3d at

1083.

Order of March 8, 2021 vacated. Case remanded with instructions to

appoint new PCRA counsel. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/14/21

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